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Collman v. State8/23/2000
(b), to establish that a killing is murder under subsection (1)(a), the State must prove that the killer acted with malice aforethought, i.e., with the deliberate intention unlawfully to take life or with an abandoned and malignant heart. See NRS 200.020. Proof of an enumerated means then establishes that the murder is of the first degree.
The jury instruction in this case improperly relieved the State of this requirement. For Collman's actions to constitute murder, the jury had to find that he acted with malice aforethought. This malice could not be presumed simply from his commission of child abuse pursuant to NRS 200.030(6)(a), i.e., physical injury of a nonaccidental nature to a child.
Harmless-error analysis
We conclude that the giving of instruction number 11 was harmless error beyond a reasonable doubt. Collman contends that the erroneous instruction concerning malice is not subject to harmless-error analysis under Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). Therefore, Collman asserts, automatic reversal is required. We disagree.
We take this opportunity to clarify the issue of whether erroneous instructions omitting, misdescribing, or presuming an element of an offense are subject to a harmless-error analysis in light of Neder v. United States, 527 U.S. 1 (1999). In Neder, a case involving an erroneous instruction omitting an element of an offense from the jury's consideration, the United States Supreme Court concluded that such instructions are reviewable according to a harmless-error analysis. Id. at 13-15.
Traditionally, this court has held that "violations of NRS 47.230 will not be deemed harmless where the erroneous instruction concerns an essential element of the offense charged." Hollis v. State, 96 Nev. 207, 209, 606 P.2d 534, 536 (1980). In Thompson, 108 Nev. at 755-56, 838 P.2d at 456-57, this court created exceptions to the traditional rule. Thompson concluded that an instruction establishing an improper mandatory presumption concerning an element of a crime is subject to a harmless-error analysis in "rare situations" such as: (1) where the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant admitted the element on which the jury was improperly instructed; and (3) where no rational jury could find the predicate facts beyond a reasonable doubt without also finding the ultimate presumed fact. Id. at 756, 838 P.2d at 456-57.
In Neder, however, the Court recently rejected the view that only in these three "rare situations" can a jury instruction that omits, misdescribes, or erroneously asserts a conclusive presumption concerning an element of an offense be subject to a harmless-error analysis. Neder, 527 U.S. at 13-15. Neder concluded that such errors are subject to a harmless-error analysis if they do not involve the type of jury-instruction error which "vitiates all the jury's findings" and produces "consequences that are necessarily unquantifiable and indeterminate." Id. at 10-11 (citing Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)).
Notably, the Court also stated:
"We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e.g., Yates v. Evatt, 500 U.S. 391 (1991) (mandatory rebuttable presumption); Carella v. California, 491 U.S. 263 (1989) (per curiam) (mandatory conclusive presumption); Pope v. Illinois, 481 U.S. 497 (1987) (misstatement of element); Rose [v. Clark, 478 U.S. 570 (1986)] (mandatory rebuttable presumption). In other cases, we have recognized that improperly omitting an element from the jury can "easily be analogized to improperly instructi
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